Law

August 20, 2019 — New Bedford fishing magnate Carlos Rafael will permanently give up all commercial fishing by March 31 and pay a $3 million penalty to settle the federal government’s civil claims against him, federal fishing authorities said Monday.

Allegations against the self-proclaimed “Codfather” included dozens of counts of misreporting groundfish species, underreporting groundfish, and other fishery violations related to scalloping, gear and restricted areas.

The National Oceanic and Atmospheric Administration said it settled with Rafael and his fishing captains Monday in an administrative proceeding.

Rafael is sitting in federal prison at Federal Medical Center Devens, where he reported in November of 2017 to serve a 46-month sentence for falsifying fishing quota, cash smuggling and tax evasion in a separate criminal case.

His attorney in the civil matter, John Markey, said that considering what an appeal would require, Rafael believes the settlement is the right thing to do for him, his family, and the captains and crews of his vessels.

August 19, 2019 — The National Oceanic and Atmospheric Administration (NOAA) has reached a settlement with Carlos Rafael that will see the incarcerated fishing mogul pay a $3 million civil fine, relinquish the dealer permit held by his Carlos Seafood business, permanently cease all groundfish and scallop fishing, and sell all federal fishing permits and fishing vessels he owns or controls by the end of next year.

NOAA said in a press release that 17 of Rafael’s former captains will receive suspensions of their operator permits ranging from 20 to 200 days and serve probationary periods of one to three years for their own violations of federal fishing rules.

According to the settlement, Rafael’s fleet must cease all groundfish fishing by Dec. 31, 2019, and end all scallop harvesting by March 31, 2020.

August 15, 2019 — The United States should designate more critical habitat for the endangered green sea turtle, according to three environmental groups that say they will sue the government to force it to declare additional protected areas.

The groups filed a formal notice of intent Tuesday to sue the Fish and Wildlife Service and Acting Secretary of the Interior David Bernhardt. The plaintiffs are the Center for Biological Diversity, Sea Turtle Oversight Protection and Turtle Island Restoration Network.

The lawsuit notification comes as the Trump administration announced major changes to the enforcement and rule-making surrounding the Endangered Species Act. The new rules are to take effect 30 days after the administration publishes them in the Federal Register, but they only will impact new decisions.

August 12, 2019 — SEAFOOD NEWS — The California Wetfish Producers Association has filed to intervene in a lawsuit filed by environmental group Oceana over California’s northern anchovy fishery. The filing will allow the association to participate in the lawsuit to protect the interests of California fishermen and processors who would face significant economic harm if the lawsuit were successful, CWPA said in a press release.

The lawsuit alleges the National Marine Fisheries Service must set stricter limits on the northern anchovy catch. As the result of a recent Oceana lawsuit, where the Court required NMFS to revise its catch rule, the catch limit is currently set at 23,573 metric tons, which, according to NMFS estimates, is only 25 percent of the stock’s overfishing level.

Additional restrictions on the anchovy harvest are unnecessary, the CWPA said.

“If [Oceana] prevails in this case, there could be a drastic reduction from current harvest levels,” CWPA said in its filing. “Such a reduction in harvest opportunity will seriously and irreparably harm CWPA members and the wetfish industry.”

This would affect not just California wetfish fishermen, who rely on anchovy when other species like squid or mackerel are unavailable, but also the processors, distributors and seaside businesses who rely on a consistent catch. If lower catch limits are approved, the jobs of at least 400 CWPA members alone will be at risk, as well as many thousands more in related industries.

“Fishermen up and down the California coast are facing threats to their livelihoods from this frivolous and unnecessary lawsuit,” CWPA Executive Director Diane Pleschner-Steele said. “We are asking to be involved in this lawsuit to ensure that the Court also considers the needs and concerns of our members and California’s coastal communities. Our fishery management policy mandates balance between protecting the ocean and sustaining fishing communities ”

The sharply reduced catch limits that Oceana seeks are not scientifically justified. The basis for Oceana’s case is a single, flawed study that significantly underestimated the size of the anchovy population in 2015, leading to the first Court decision, the statement said. That study excluded the abundance of anchovy in inshore areas, for example.

Since then, the CWPA has participated in cooperative surveys with the NMFS Southwest Fisheries Science Center and the California Department of Fish and Wildlife. Those surveys documented tens of thousands of tons of anchovies in the inshore areas that have simply not been counted in stock assessments. This finding contradicts the argument that the anchovy population was dangerously low, and that the already precautionary catch levels must be reduced further, CWPA said.

“The best available science does not support Oceana’s position,” Pleschner-Steele said in the statement. “The Court needs to allow NMFS to set appropriate catch limits based on sound science.”

This story was originally published on SeafoodNews.com, a subscription site. It is reprinted with permission.

August 12, 2019 — A trade group and a California-based processing company filed a motion in a U.S. federal court last week seeking to intervene in a lawsuit brought on by Oceana against NOAA Fisheries.

The Oceana suit, filed in June, claims the government agency is not following the best available science to set the catch limit on the anchovy stock in Northern California. That suit was in response to the catch limit NOAA Fisheries set in May after an order from a federal judge stemming from an earlier lawsuit by Oceana.

August 9th, 2019 — Carlos Rafael and his daughter will pay a $500,000 fine for the dumping of oily bilge and fuel filters from one of his fishing vessels, the Vila Nova do Corvo II.

The vessel captain, Carlos Pereira, will pay $11,000.

The proposed settlement for violations of the Clean Water Act and Coast Guard regulations was filed in federal court on Friday. The consent decree is subject to a 30-day public comment period and court approval.

The California Wetfish Producers Association (CWPA) has filed to intervene in a lawsuit filed by environmental group Oceana over California’s northern anchovy fishery. The filing will allow CWPA to participate in the lawsuit to protect the interests of California fishermen and processors who would face significant economic harm if the lawsuit were successful.

The lawsuit alleges that the National Marine Fisheries Service (NMFS) must set stricter limits on the northern anchovy catch. As the result of a recent Oceana lawsuit, where the Court required NMFS to revise its catch rule, the catch limit is currently set at 23,573 metric tons, which, according to NMFS estimates, is only 25 percent of the stock’s overfishing level.

Not only are additional restrictions on the anchovy harvest unnecessary, but greater cuts would result in significant job loss and economic hardship for California’s wetfish industry and coastal communities.

“If [Oceana] prevails in this case, there could be a drastic reduction from current harvest levels,” said CWPA in its filing. “Such a reduction in harvest opportunity will seriously and irreparably harm CWPA members and the wetfish industry.”

This would affect not just California wetfish fishermen, who rely on anchovy when other species, like squid or mackerel, are unavailable, but also the processors, distributors, and seaside businesses who rely on a consistent catch. If lower catch limits are approved, the jobs of at least 400 CWPA members alone will be at risk, as well as many thousands more in related industries.

“Fishermen up and down the California coast are facing threats to their livelihoods from this frivolous and unnecessary lawsuit,” said Diane Pleschner-Steele, executive director of CWPA. “We are asking to be involved in this lawsuit to ensure that the Court also considers the needs and concerns of our members and California’s coastal communities. Our fishery management policy mandates balance between protecting the ocean and sustaining fishing communities ”

The sharply reduced catch limits that Oceana seeks are not scientifically justified. The basis for Oceana’s case is a single, flawed study that significantly underestimated the size of the anchovy population, in 2015, leading to the first Court decision, That study excluded the abundance of anchovy in inshore areas, for example. Cooperative surveys that CWPA has conducted with the Southwest Fisheries Science Center and the California Department of Fish and Wildlife have documented tens of thousands of tons of anchovies in these areas that have simply not been counted in stock assessments. . This finding contradicts the argument that the anchovy population was dangerously low, and that the already precautionary catch levels must be reduced further.

“The best available science does not support Oceana’s position,” said Ms. Pleschner-Steele. “ The Court needs to allow NMFS to set appropriate catch limits based on sound science.”

August 7, 2019 — The American Tunaboat Association, a trade group representing owners and operators of the U.S. tuna fleet, has lost a lawsuit that it filed after being denied “applicant” status by the National Marine Fisheries Service in Endangered Species Act consultations.

In December 2018, the ATA received a notification of rejection from the NMFS in its attempt to be given applicant status under the agency’s rules for participating with full rights and status in consultations on the NMFS’ decisions regarding how to apply the Endangered Species Act in the U.S. purse-seine tuna fishery in the Western and Central Pacific Ocean. The ATA’s appeal of the decision was rejected in January 2019 by senior officials in the NMFS and U.S. Department of Commerce. In response, the ATA sued in April 2019.

July 8, 2019 — SEAFOOD NEWS — The more things change, the more they stay the same.

In this case, NMFS issued a final rule regarding management of the central subpopulation of anchovy off California, and the conservation group Oceana sued. NMFS applied best available science and approved policy to update the rule using recent biomass estimates, as directed by the Court, and re-filed it last month. Oceana sued again last week.

The lawsuit against the National Marine Fisheries Service was filed over the agency’s “continued failure to prevent overfishing, use the best available science, or account for the food needs of ocean animals in managing anchovy,” Oceana said in a press release.

The rule established a multi-year, unchanging catch limit for anchovy that does not account for the frequent, and sometimes rapid, cycles of booms and busts in the size of this population, Oceana said. The final rule is a near carbon copy of an earlier proposal by the Fisheries Service in 2016 that was struck down in court because it did not use best available science and did not prevent overfishing.

Oceana, represented by Earthjustice, said NMFS continues to manage certain fish populations, including northern anchovy, by setting multi-year catch limits that stay in place regardless of the population’s status. The complaint, filed in the U.S. District Court for the Northern District Court of California, claims that in failing to actively manage the anchovy population based on current population size, NMFS has again failed to use the best available science, prevent overfishing and ensure adequate forage fish for dependent predators, the press release said.

The recent NMFS final rule employed the same harvest policy as originally approved and updated the reference points based on recent years of anchovy biomass estimates. The new overfishing limit, which represents a long-term average maximum sustainable yield, is close to the original estimate. The acceptable biological catch and annual catch limit also conform with the original harvest policy, which is based on 25% of the OFL. The anchovy population is acknowledged to be close to historic abundance, which is why the numbers are similar, industry members say.

The NMFS acoustic trawl survey method on which the management levels are based is at the heart of the issue. Both the California Wetfish Producers Association and the West Coast Pelagic Conservation Group say the survey does not capture an accurate picture of the anchovy biomass; for example, it misses the nearshore areas that anchovy frequent as well as the upper 10 meters of the water column, the acoustic “dead zone.” The model used to estimate anchovy biomass also is missing critical age information from earlier decades.

“… despite Oceana’s claim that acoustic trawl surveys are ‘state of the art’ science, the 2018 Acoustic Trawl Methods Review down-weighted the AT survey biomass estimates to a ‘relative’ index of abundance because it omits a substantial portion of the biomass inshore of the existing survey tracks, as documented by our collaborative [California] Department of Fish and Wildlife aerial surveys,” CWPA Executive Director Diane Pleschner-Steele said in an email.

Both the CWPA and WCPCG have developed collaborative methods to survey the nearshore areas for forage fish utilizing exempted fishing permits. The groups are working with both state and federal researchers to get a fuller picture of the anchovy — and other pelagic species — stock.

Oceana representatives have said the acoustic trawl survey, with the state-of-the-art technological equipment, does represent the best available science. Industry members argue that the best equipment and a model that relies primarily on that data does not represent the “best science” since it cannot survey many areas where the anchovy spend much of their time.

“We remain frustrated that the Fisheries Service continues to ignore state of the art fish population surveys produced by their own scientists when deciding how many anchovies fishermen can catch on an annual basis,” Geoff Shester, Oceana California Campaign Director and Senior Scientist, said in a statement, noting that predators such as other fish, whales, pelicans, sea lions depend on anchovies and other forage fish species.

“Oceana has dismissed concerns industry has expressed about the survey, such as lack of data on the inshore components of the stock,” WCPCG member Mike Okoniewski said in an email. “While industry is actually working collaboratively with the science centers and state agencies to explore alternative survey methodology … , we wonder why Oceana would rather litigate, than collaborate with ongoing efforts the science staff and industry are undertaking to gain a better knowledge about the population size and behavior of our coastal pelagic stocks?”

Meanwhile, Pleschner-Steele said California fishermen have ben seeing abundant anchovy since 2015. At least now NOAA’s acoustic surveys are beginning to validate fishermen’s observations to a degree, but the still missing nearshore component is a problem that has been recognized as necessary to fully assess the central anchovy stock. The stock historically fluctuated between very high and very low abundance, even absent any fishing activity. The Pacific Fishery Management Council and NMFS have established a very precautionary management approach by capping the harvest at 25 percent of the estimated OFL. The harvest rule is based on a long-term average biomass, not a single-year stock assessment. Even with a 25,00 mt harvest cap, fishermen have landed far less, averaging only 8,000 mt per year or less.

“Industry will always have more ‘sea’ time than the survey or research ships. Our livelihoods depend on what we observe,” Okoniewski said. “While we are not scientists we do first hand surveillance of these stocks and their environment. This has motivated us to work more closely with the scientific staff, and in most cases this has been reciprocated by the science community. Coastal Pelagic stocks are difficult to survey and fishery observations often differ from scientific observations. We believe it is best to work together to resolve some of these differences in observation.”

This story was originally published on SeafoodNews.com, a subscription site. It is reprinted with permission.

June 26, 2019 — The United States Supreme Court on Monday, 24 June issued a decision likely to result in lower insurance premiums for U.S. fishing vessels.

The court ruled in favor of the defendant in the case Dutra v. Batterton. The plaintiff, a seaman employed by Dutra Group, who was injured when a hatch on a dredge vessel blew open and crushed his hand, sued Dutra seeking general and punitive damages, asserting that the vessel on which he was working was unseaworthy.

Lawyers representing Dutra Group argued that the claims for punitive damages are not eligible on the basis of unseaworthiness. Justices sided with Dutra, ruling that the plaintiff may not recover punitive damages on a claim of unseaworthiness, which reversed a previous ruling by the Ninth Circuit that the plaintiff was eligible for punitive damages.

Justice Alito wrote the majority opinion and was joined by Chief Justice Roberts, as well as Justices Gorsuch, Kagan, Kavanaugh, and Thomas. Justice Ginsberg wrote the dissenting opinion and was joined by Justices Breyer and Sotomayor.

Isaak Hurst, a lawyer at the International Maritime Group, a law firm in Seattle, Washington, U.S.A., said that the court’s decision was a “big win for vessel owners because of the conflicting body of law that has developed around ‘unseaworthiness.’”